2016 (6) TMI 1127 - AT - Income Tax

ITAT Allows Carry Forward of Losses for Unlettable Property

Dy. Commissioner of Income-Tax 1 (3), Centre-1, Mumbai Versus M/s. Shubham Properties Ltd. and M/s. Shubham Properties Ltd. Versus Asst. Commissioner of Income-Tax 1 (3), Mumbai

The ITAT dismissed the Revenue's appeal and allowed the assessee's appeal, directing the Assessing Officer to permit the carry forward of losses under the ... Carry forward of losses under the head “Income from House Property” as provided for in Section 71B - Held that:- ITAT ‘F’ Bench in case of Vaidehi Estates Ltd. Vs. DCIT (OSD) [2015 (7) TMI 1131 - ITAT MUMBAI] on similar issue decided the same in favour of assessee. Nothing contrary was brought to our knowledge on behalf of Revenue. Facts being similar, so following same reasoning, we hold that income assessee is to be computed as ‘Income from House Property’. Accordingly, assessee’s claim in this regard is allowed. Regarding departmental grievance, once we have held that income is to be assessed as ‘Income from House Property’ as above, on the basis of order of CIT(A) this issue is upheld. Issues:1. Allowance of carry forward of losses under section 71B of the Income Tax Act.2. Computation of income under the head 'Profits and Gains of Business and Profession' or 'Income from House Property.'Issue 1: Allowance of carry forward of losses under section 71B of the Income Tax Act:The case involved cross-appeals by the Revenue and the assessee against the order of the Commissioner of Income-Tax (Appeals) for the assessment year 2007-08. The Revenue contended that the CIT (A) erred in allowing the carry forward of losses under section 71B without considering that the expenses were confirmed as 'Pre-operative expenses' and should have been claimed under section 35D of the IT Act. The assessee, on the other hand, argued that the losses should be carried forward under the head 'Income from House Property.'The assessee had purchased an immovable property in Mumbai and incurred expenses, including interest paid on loans. The Assessing Officer treated the expenses as preoperative expenditure since the property was not let out, disallowing the claim for carry forward of losses under the head 'Income from House Property.' The CIT (A) upheld this decision, stating that the property was not lettable during the relevant year and the expenses were preoperative in nature.However, the ITAT held in favor of the assessee, following a similar decision in another case. It concluded that the income should be computed as 'Income from House Property,' allowing the claim for carry forward of losses under section 71B. The ITAT rejected the Revenue's contentions, upholding the decision of the CIT (A) on this issue.Issue 2: Computation of income under the head 'Profits and Gains of Business and Profession' or 'Income from House Property':The assessee argued that the income should be computed under the head 'Income from House Property,' while the Assessing Officer considered it under 'Profits and Gains of Business and Profession.' The CIT (A) agreed with the Assessing Officer, stating that the property was not lettable during the relevant year and the expenses were preoperative in nature, disallowing the deduction of interest and the claim for carry forward of losses.The ITAT, however, held that the income should indeed be computed as 'Income from House Property,' allowing the deduction of interest and the carry forward of losses under section 71B. It noted that since the assessee had no other income under any other head, the losses under 'Income from House Property' qualified to be carried forward.In conclusion, the ITAT dismissed the Revenue's appeal and allowed the assessee's appeal, directing the Assessing Officer to allow the carry forward of losses under the head 'Income from House Property' as per the provisions of section 71B of the Income Tax Act.This detailed analysis of the legal judgment highlights the key issues involved, the arguments presented by both parties, and the reasoning behind the ITAT's decision in each aspect of the case.